United States v. Andrade-Aguilar, 570 F.3d 213 (5th Cir. May 27, 2009) (defendant's first state drug possession conviction was not "final" before commission of second possession offense, and thus second offense could not be aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), since it could not have constituted felony conviction if it had been prosecuted in federal court, for purposes of imposing a sentence enhancement under USSG 2L1.2(b)(1) for illegal reentry; "to show finality, the Government was required to show by a preponderance of the evidence both that (1) Andrades July conviction was 'no longer subject to examination on direct appeal' within the meaning of Morales, and (2) that it was not subject to discretionary review by any court."); see United States v. Morales, 854 F.2d 65, 69 (5th Cir. 1988); Smith v. Gonzales, 468 F.3d 272, 277-78 (5th Cir. 2006) (discretionary review requirement).